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Clear and present danger
Clear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the majority opinion for the case Schenck v. United States,Schenck v. United States, . concerning the ability of the government to regulate speech against the draft during World War I: Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger". However, it should be noted that the "clear and present danger" criterion of the Schenck decision was later modified by Brandenburg v. Ohio,Brandenburg v. Ohio, . and the test refined to determining whether the speech would provoke an imminent lawless action. The vast majority of legal scholars have concluded that in writing the Schenck opinion Justice Holmes never meant to replace the "bad tendency" test which had been established in the 1868 British case The Queen v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. This is demonstrated by the use of the word "tendency" in Schenck itself, a paragraph in Schenck explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous Frohwerk v. United States and Debs v. United States decisions (both of which cite Schenck without using the words "clear and present danger"). However, a subsequent essay by Zechariah Chafee entitled “Freedom of Speech in War Time” argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech. Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling ACLU and other libertarians of the time. Having read Chafee's article, Holmes decided to retroactively reinterpret what he had meant by "clear and present danger" and accepted Chafee's characterization of the new test in his dissent in Abrams v. United States just six months after Schenck,Abrams v. United States, . perhaps the only time in history where a single legal scholar changed the course of jurisprudence. Significantly unlike Abrams, the cases of Schenck, Frohwerk, and Debs had all produced unanimous decisions. Justice Brandeis soon began citing the "clear and present danger" test in his concurrences, but the new standard was not accepted by the full court until its official adoption in Brandenburg v. Ohio fifty years later. See also *Shouting fire in a crowded theater *Imminent lawless action *''Dennis v. United States'' *''Korematsu v. United States'' References Further reading * Research resources *[http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Schenck_v_US First Amendment Library entry on Schenck v. United States] *First Amendment Library entry on Famous First Amendment Phrases: Origins Category:Censorship in the United States Category:Freedom of expression Category:Legal terms ja:明白かつ現在の危険